The time is now to do even more to address the pressures and relieve the constraints that lawyers, and their clients, are under.
Convert “ADR” from an “Alarming Drop in Revenue” to “Achieve Dazzling Results”–and repeat business (Truly)
I have been writing in the Connecticut Law Tribune and elsewhere about developing best practices in dispute resolution. A prime objective of mine as a mediator and arbitrator is to advance the implementation of those practices–further enabling attorneys to achieve even better results for their clients with less cost and delay, as clients increasingly demand. It can be done–in ways that may move beyond current convention. So I am starting this monthly e-mail bulletin that will focus on one cutting edge idea of direct practical application for each of mediation and arbitration.
My goal is to plant or reinforce ideas that you may not have fully considered and that you can use immediately and will have a direct, positive impact on your practice.When these practices become more widespread, attorneys and clients alike will profit and the system of resolution will advance.
Mediation early in the case remains vastly underutilized, despite the substantial upside and essentially no risk. We know that at least 95% of civil cases will settle, often late in the game or on the eve of trial. By mediating early, you can:
- Find means to favorable settlement before the dispute escalates, positions harden and the case takes on a life of its own. Escalation and entrenchment of positions are the greatest, and most avoidable, causes of excessive cost and barriers to constructive settlement. [Next month’s bulletin will address the pitfalls of escalation and other methods to avoid its effects];
- Even without a settlement, productively narrow and focus the dispute to that which is really at stake;
- Identify mutual interests that can “expand the pie” and set the stage for later settlement.
Litigators are almost universally skeptical of early mediation and see risks of “blind” settlements and truncated discovery. While not all cases are suitable, so many are, particularly in the commercial area–far more than are currently afforded the opportunity. The perceived risks can be managed and, with the “right process”, are far outweighed by the benefits of much lower cost and better outcomes. Investment in early mediation can be recovered many times over. [More on constructing the right process in a later bulletin.]
The tide will shift because:
- Early mediation just works, and
- Attorneys and clients discover a vehicle that improves client satisfaction and leads to repeat business.
Arbitration clauses often specify the Commercial Rules of the American Arbitration Association to govern mandatory arbitration of the dispute. The AAA adopted new Commercial Rules effective as of October 1, 2013, which mandate streamlining of the arbitration process and expressly give greater case management power to arbitrators.
Do not underestimate the potential for these new Rules to be game changers. They signify a decisive shift in orientation away from the oft-lamented “litigization” of arbitration. You can now initiate an arbitration under the Rules with greater assurance of an efficient, tightly managed process. For example, the new Rules favor single arbitrators over a three arbitrator panel and provide for mediation of cases in which the amount in dispute exceeds $75,000. Change in eliminating excessive and unnecessary costs in commercial arbitration will not occur overnight. The impact of these new Rules will be felt gradually, but the impact over time will be real. See the new Commercial Rules @ADR.org.